H. ABDUL RAUF KHAN Versus PAKISTAN TOBACCO CO. LTD.
DECISION
These two appeals are directed against the order of learned Presiding Officer, Sindh Labour Court No. II at Karachi, dated 4-4-1989, whereby he allowed the grievance petition filed by the workman Abdul Rauf Khan (hereinafter referred to as the `respondent') and ordered his reinstatement in service without back benefits.
2. The employer `Pakistan Tobacco Company Ltd., Karachi' (hereinafter referred to as the `appellant') filed Appeal No. KAR-293 of 1989 against the order of reinstatement of the respondent whereas the respondent filed Appeal No. 292 of 1989 against the order of learned Labour Court denying him back benefits. I propose to dispose of both the appeals by this single decision.
3. The brief facts of the case are that the respondent was admittedly employed as Clerk/Checker by the appellants. It is alleged that on 10-5-1987 the respondent was going on motor-cycle alongwith Din Muhammad when Gate-Keeper Muhammad Alamgir stopped him and asked him to be searched by Obaidur Rehman. The respondent instead of stopping turned the motor cycle and sped away towards the factory. Mr. Obaidur Rehman stopped one Qamar Qureshi, who was going on motor-cycle, jumped on to the motor-cycle of Oamar Qureshi and followed the respondent when they saw the respondent throw away from his motor-cycle packet of Gold-leaf Cigarettes, which was recovered by Mr. Obaidur Rehman. The respondent was charge-sheeted for the aforesaid act of theft which amounted to misconduct under Standing Order 15(3) and was found guilty in the domestic enquiry held by Mr. Altafur Rehman Khan: He was dismissed from service vide order, dated 10-6-1987. He served grievance notice upon the appellants but failing to get any relief filed grievance petition before the learned Labour Court.
4. I have heard Mr. Gulzar Ahmad, learned Advocate for the appellants and Mr. Ch. Muhammad Ashraf Khan, learned Advocate for the respondent and have also gone through the record and proceedings of the case.
5. The learned Labour Court came to the conclusion that enquiry was not conducted in a fair and impartial manner and also disbelieved the allegation of theft against the respondent because of certain contradictions in the evidence of the prosecution witnesses. The learned Labour Court came to the conclusion that the enquiry was not fair and impartial on the ground that the applications of the respondent for supply of copies of the statements of witnesses in the preliminary enquiry were admittedly not given to him by the Enquiry Officer and also that the Enquiry officer refused to give him the copies of the statements of witnesses recorded by the Enquiry Officer so that he should be able to cross-examine them on the next hearing. The Enquiry Officer Altafur Rehman in the cross-examination before the learned Labour Court admitted that he refused both the requests of the respondent on the ground that the same were not the requirement of law.
6. In the case of Dawood Cotton Mills Ltd. v. Guftar Shah PLD 1981 Supreme Court 225 their Lordships had held that `the requirement of law under Standing Order 15(4) was to give information of alleged misconduct and opportunity to explain circumstances alleged against workman and to defend himself by -cross-examining witnesses and examining himself or any other witnesses in defence'. In the case of Muhammad Shamim v. M/s. Pakistan Tobacco Co. Ltd., Karachi and another 1975 SCMR 46, their Lordships held that Labour Court had to consider the question as to whether the action taken against the petitioner was in accordance with law.
7. The requirement of law, as held by their Lordships in the case of Dawood Cotton Mills Ltd., was that the petitioner should be given opportunity to defend himself by cross-examining the witnesses. No specific procedure for holding enquiry is laid down under Standing Orders but it is settled law that principles of natural justice have to be followed and a fair opportunity is to be given to the accused workman to defend himself. It appears from record that witnesses, who were examined against the respondent before the Enquiry Officer; were also examined earlier in the preliminary enquiry. The request of the respondent for copies of the earlier statements of such witnesses was reasonable and was necessary to enable him to cross-examine them and to confront them with the previous statements if there was any contradiction. The refusal of the Enquiry Officer to give him copies of earlier statements of witnesses, in fact, handicapped him and deprived the respondent of properly cross-examining the witnesses and bringing out contradictions, if any, in their statements. These previous statements are in the enquiry papers which have been filed before the learned Labour Court and must have been considered and seen by the Enquiry Officer while forming the opinion about the guilt of the respondent. In my opinion the refusal of the grant of copies of the previous statements of witnesses amounts to denying full opportunity to respondent to defend himself and violates principles of natural justice.
8. With regard to the refusal of the request of the respondent for the copies of the statements of witnesses to be given to him and the cross- examination of witnesses be kept on next day, so that he could be prepared, it cannot technically be said to be illegal, as the witnesses were examined in presence of the respondent whereafter he cross-examined them. However, looking to the fact that the respondent was not `legal practitioner' but a `lay man' it would have been more proper, if his request had been allowed, so that he could have enough time to prepare for the cross-examination of the witnesses. However on this ground alone the enquiry cannot be held to have been vitiated.
9. The third ground that weighed with the learned Labour Court was that the request of the respondent for change of the Enquiry Officer was rejected by the appellants. Though the accused person does not have the right to choose the person, who should hold enquiry against him but if for any reason, he felt, that he would not get proper justice at the hands of Enquiry Officer, specially in view of the fact that his request for supply of copies was rejected by the Enquiry Officer, it would have been more fair and proper that his request had been allowed. There is no evidence to show that he wanted to delay the proceedings by his request to change the Enquiry Officer or that even earlier any Enquiry Officer was changed at his request.
10. However, in view of the fact that he was denied the copies of the previous statements of witnesses in my opinion, the respondent was denied the for opportunity to defend himself and any order passed on the basis of such enquiry report is not tenable.
11. I need not discuss the merits of the case, as under the circumstances of this case, the appellants can still hold fresh enquiry on the same charge- sheet against the respondent in accordance with the principles of natural justice through an independent Enquiry Officer.
12. The Appeal No. KAR-293 of 1989, filed by the appellants, is therefore, dismissed with the observations that the appellants, if they so desire, may hold fresh enquiry on the same charge-sheet in accordance the principles of natural justice and rules by some independent Enquiry Officer within four months of this order.
13. As I have allowed the appellants to hold fresh enquiry the question of payment of back benefits to the respondent would be dependent upon the result of such enquiry. However, if the appellants choose not to hold fresh enquiry, then because appeal has been dismissed on technical grounds and because the charges against the respondents are of serious nature, I am inclined to agree with the learned Labour Court that he was not entitled to get back benefits. Appeal No. KAR-292 of 1989, filed by the respondent, is disposed of in the above terms.
M.Y.H./1831/Lb.S Order accordingly.